FURTHER UPDATE Friday p.m.
The Supreme Court has extended the time for filing opening briefs in the two detainee cases pending there, with detainees’ briefs due on Aug. 24 and the government brief due Oct. 9. Thus, that schedule will allow both sides to discuss in their opening briefs the Circuit Court ruling issued Friday. The order extending the time for briefing was issued July 13.

UPDATE: The D.C. Circuit decision discussed in this post has been awaited by the Supreme Court as it prepares to review, at its next Term, the legal rights of detainees being held by the U.S. military; the cases are Boumediene v. Bush (06-1196) and Al Odah v. U.S. (06-1196). When the Supreme Court agreed on June 29 to hear those cases, it said it would call for added briefing after the D.C. Circuit ruled — as it now has — in the cases described below. The Circuit Court ruling on Friday may have a major bearing on whether the Circuit Court’s review of detainee confinement decisions is an adequate substitute for the habeas rights that the detainees are seeking to have the Supreme Court restore.

The D.C. Circuit Court, in a partial but significant setback for the Bush Administration, ruled on Friday that it will engage in a broad review as it decides whether to uphold military decisions to continue to hold detainees at Guantanamo Bay, Cuba, the military prison camp set up to hold “war-on-terrorism” captives. Partially rejecting the government’s narrow definition of the Circuit Court’s review powers under the Detainee Treatment Act 0f 2005, the three-judge panel said all information “reasonably available” to the government, plus any information offered by a detainee, is to be considered in DTA review. The decision can be found here.

The Court stressed that it will expect to examine all government information bearing on an individual detainee’s case, and not just the specific evidence that the government used in deciding to keep a detainee in military prison. “The court must be able to view the government information with the aid of counsel for both parties; a detainee’s counsel who has seen only a subset of the government information [used as actual evidence] is in no position to aid the court.”

“The Court cannot, as the DTA charges us, consider whether a preponderance of the evidence supports [a detention] determination without seeing all the evidence, any more than one can tell whether a fraction is more or less than one half by looking only at the numerator and not at the denominator,” Circuit Judge Douglas H. Ginsburg wrote for the Court. Circuit Judge Karen LeCraft Henderson joined the opinion in full.

One member of the panel, Circuit Judge Judith W. Rogers, wrote a concurrence, putting emphasis on possible limitations on court review that may buttress the argument that the DTA process is not an adequate substitute for habeas. Her opinion is likely to be used by detainee lawyers as they argue that even the process laid out Friday does not go far enough to protect detainees’ rights.


Although the Court rejected a plea by detainees’ lawyers to allow them to question military officials in pursuit of additional evidence about the validity of detention rulings, it said it was doing so only for the present, and indicated that the lawyers might be allowed “discovery” rights at some future point. Courtroom battles over discovery issues may become a common feature of DTA cases in the future, it appears. The Circuit Court also refused to name a special master to aid in processing the cases and ruling on procedural matters, but it did so “without prejudice” to that issue being brought up again later.

In a distinct victory for detainees, the Court sad it will presume that a detainee’s lawyer has a “need to know” the classified information relating to the detainee’s case — except for “certain highly sensitive information.” Even that type of information, however, must be made available to the Court while being withheld from the detainee and his lawyer, the panel declared.

The Court ordered a new “protective order” to assure counsel access to classified information, to make it easier for lawyers to begin representing detainees, and to assure that lawyers have access to their clients at Guantanamo. The Court’s Clerk will prepare that order, but counsel will be given a chance to seek changes in it.

The ruling in Bismullah v. Gates (Circuit docket 06-1197) and Parhat v. Gates (06-1397) lays the groundwork for review by all panels of the Circuit Court of scores of rulings by so-called “Combatant Status Review Tribunals” — the military’s mechanism for deciding whether an individual detainee is to remain imprisoned as an “enemy combatant.” Nearly 600 such CSRT rulings have been made. Thus, the procedures spelled out in Friday’s opinion will begin immediately to affect the first case challenging a CSRT decision — a case now proceeding in the Circuit Court on the merits, aiming toward a Sept. 17 hearing (Paracha v. Gates, 06-1038).

The task assigned the D.C. Circuit under the Detainee Treatment Act is to judge the adequacy of the CSRT rulings to continue to hold a detainee. Lawyers for the government and for detainees have jousted for weeks over how far that review is to extend. The government has argued that the Circuit Court is to review a CSRT ruling the same way it would for a decision by a federal administrative agency — essentially, quite deferential review. Detainees have countered that, in order to be an adequate substitute for habeas and thus to survive constitutional attack, DTA review must be wide-ranging and deeply probing — essentially, the equivalent of habeas.

The Circuit Court ruling appears to fall somewhere in the middle, but perhaps a bit closer to the detainees’ argument. For example, Judge Ginsburg’s opinion raised doubts about the government claim that the actions of military officers preparing for a CSRT are to be presumed to be regular. Both Ginsburg and Judge Rogers in her separate opinion appeared troubled by Pentagon revelations to the Court that information the government has does not to get to CSRT at all, and is not processed as Pentagon rules supposedly require.

Other disputes that Friday’s ruling resolve are over counsel access to their clients — again, the Circuit Court appears to be somewhat more accommodating to detainees’ lawyers than to the government; over access to classified information — decided quite significantly in the detainees’ favor — and censorship of mail sent by lawyers to their clients at Guantanamo — decided more favorably to the government than to the detainees.

Judge Rogers, in her separate opinion, said that the Circuit Court had “adopted a pragmatic balance” in the procedures it laid out for government oversight of mail between lawyers and detainees.

But she appeared to be somewhat skeptical of the breadth of the CSRT record that Circuit Court panels will actually review in detainee cases. She said that this “will be only a partial record,” partly because detainees will not be allowed to be helped by lawyers in presenting evidence the detainee has about his case, and because compilation of the initial CSRT record may be done by “unilateral decisions” by Pentagon officials.

Judge Rogers also was mildly critical of the Pentagon’s conduct as these cases proceeded, saying she saw a gap between what Congress wanted the DTA process to be, and the Pentagon’s actual operation of CSRTs. In this respect, she noted that the detainees had filed with the Court a sworn statement from within the CSRT review process, by a Reserve military officer, questioning the methods of gathering information for CSRTs. She said the revelations by that officer and by Pentagon officials were “unsettling.”

The Bush Administration, she noted, had argued that the CSRT process under DTA would be “an adequate replacement for the writ of habeas corpus.” She said the new revelations in these cases “reinforce concerns about the adequacy” of DTA as a habeas substitute.

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